392 South Broadway v. Town of Salem, Doc. No. 218-2014-CV-417 (Rockingham Super. Ct., September 23, 2014) (Wageling, J.)

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The State of New Hampshire


392 South Broadway, LLC


Town of Salem
Cumberland Farms, Inc. - Intervenor

Docket No.: 218-2014-CV-417


Plaintiff 392 South Broadway, LLC has appealed a decision of the Town of Salem ("Town") Planning Board ("Planning Board") which approved a plan to raze an existing gas station and construct a new building and gas station. Cumberland Farms, Inc. ("Intervenor"), the owner of the property in question, has intervened. Currently before the Court is Plaintiff's motion to strike the decision of the Planning Board for violating the Right to Know law and for attorney's fees. See RSA ch. 91-A. The Town and Intervenor object. A hearing was held on August 14, 2014 at which the Court heard offers of proof. After review, the motion to strike and for attorney's fees is GRANTED.


Plaintiff, as an abutter of the property in question, was actively involved in proceedings at the Planning Board. In preparing for their opposition to the project, Plaintiff sent Michelle Fabbrini, an employee of Plaintiff, to the Planning Board seven times. Each time, she requested the file from the Planning Board and copied its entirety.1 See Motion to Vacate, Ex. A, Affidavit of Fabbrini. Each time, Ms. Fabbrini [2] was only given part of the file as it is apparently policy of the Planning Board to not include email chains in the file. Additionally, there were two plans, the Storm Water Management, Drainage Calculations, and Best Management Practices for Cumberland Farms, dated October 26, 2012 and January 11, 2013 (collectively "the plans") which were not provided. The Court was advised during the hearing that the plans were too large to fit in the physical file. The Town made an offer of proof at the hearing that, had Ms. Fabbrini requested "the complete file" rather than "the file," she would have been provided the plans and emails. In addition, Plaintiff's counsel twice emailed Robert Moldolf, the Salem Town Planner, with specific requests. Each time, Mr. Moldoff responded to the queries and confirmed that he had not received any additional submissions.2 See Motion to Strike, Ex. C, Objection to Motion to Strike, Affidavit of Moldoff, Ex. A.

Mr. Moldoff avers that the Planning Board did not actually review the plans, but rather sent them to an outside drainage consultant, Edwin Minnick, upon whose approval the Planning Board relied. Plaintiff did receive a letter from Chris Tymula on behalf of Intervenor to the Town, dated October 29, 2012. C.R. 15. The letter advised the town that it was submitting "3 copies of the Storm Water Management Report" -- which the Court concludes is the October 26, 2012 plan reference above. Plaintiff never received any documents which mentioned by name the January 11, 2013 plan. At no point did Plaintiff specifically request either the email documents or the plans. Mr. Moldoff avers that, had Plaintiff done so, he would have provided the emails and plans.

[3] There remains a factual dispute over whether certain other documents were produced. For example, there were several "transmittal letters" which Plaintiff contends were not in the file but which the Town counters were, indeed present. See Objection to Motion to Strike ¶ 11. At Plaintiff's urging, the Court agrees that it need not resolve this factual discrepancy, as the Town admits that certain documents were not produced.3 No party disputes that, at the very least, Plaintiff did not receive the plans until they appeared as part of the certified record before this Court.


Plaintiff seeks to invalidate the decision of the Planning Board. The Town and Intervenor object. Preliminarily, the Court rejects the Town's claims that "392 South Broadway, however, has not filed a Right-To-Know Law petition requesting injunctive relief as required by RSA 91-A:7 and cannot circumvent the injunction requirements of RSA 91-A:7." Objection to Motion to Strike ¶ 11. First, the Court does agree that a petition for injunction is the only procedural avenue available. See RSA 91-A:7 ("Any person aggrieved by a violation of this chapter may petition the superior court for injunctive relief.") (emphasis added). Nor are there any substantive requirements for an injunction which Plaintiff seeks to "circumvent." See id. ("The petition shall be deemed sufficient if it states facts constituting a violation of this chapter, and may be filed by the petitioner "or his or her counsel with the clerk of court or any justice thereof."). Finally, the statute contemplates the issuance of injunctions against future violations but the Court is authorized to invalidate a decision without an injunction. Compare RSA 91-A:8, III ("The court may invalidate an action of a public body or public agency taken at a [4] meeting held in violation of the provisions of this chapter, if the circumstances justify such invalidation.") with RSA 91-A:8, V ("The Court may also enjoin future violations of this chapter. . . ").

I. The Town Violated Right To Know

"Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release." RSA 91-A:4, IV. The Town agrees that it did not produce the plans, but argues that Plaintiff did not specifically request those plans.

"The purpose of the Right-to-Know Law is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." 38 Endicott Street North, LLC v. State Fire Marshal, N.H. Div. of Fire Safety, 163 N.H. 656, 660 (2012) (citation and quotation omitted). "It thus furthers our state constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted." Id.

While the New Hampshire Supreme Court has not specifically addressed what constitutes "reasonably described" documents and the required level of specificity, "[i]n interpreting provisions of the New Hampshire Right-to-Know Law, [the Court] often look[s] to the decisions of other jurisdictions interpreting similar provisions of other statutes for guidance, including federal interpretations of the federal Freedom of Information Act (FOIA)." Id. In considering whether a request reasonably describes a set of documents, the federal courts consider whether the agency could produce the documents with a "reasonable amount of effort." See Dale v. I.R.S., 238 F.Supp.2d 99, [5] 104 (D.D.C. 2002); Roman v. C.I.A., 2013 WL 210224, *6 (E.D.N.Y. 2013) ("Plaintiff's requests for 'all files and/or reports' on 'Arch of the Covenant,' and 'military or non-military reports of angels and persons dressed in white' are not specific enough for an employee of the agency to find all files regarding this information with a reasonable amount of effort."). There is no requirement that a class of documents be requested by name -- only that it is reasonably described so that the agency can find it with a "reasonable amount of effort." Here, Plaintiff's request for "the file" rather than "the complete file" meets that standard.4 The Planning Board was in possession of the emails and the plans and knew that they existed and where they were. The documents are not large or scattered. Indeed, the Town Planner averred that, had Ms. Fabbrini requested either of the documents by name or "the complete file," they would have been produced. The Court finds that requesting "the file" was sufficiently specific under the circumstances.

Similarly, the Court finds that the Town's search for the records was inadequate. "[T]he adequacy of an agency's search for documents is judged by a standard of reasonableness. The crucial issue is not whether relevant documents might exist, but whether the agency's search was reasonably calculated to discover the requested documents." ATV Watch v. N.H. Dept. of Transp., 161 N.H. 746, 753 (2011) (quoting and adopting federal standard) (citations, quotations, and alterations omitted). As discussed above, Plaintiff sufficiently described that it wanted all documents relating to the application, and the Town, by failing to produce the emails and the plans, which were presumably collocated with the physical file, did not conduct a reasonably [6] adequate search.

II. The Appropriate Remedy is Vacation

"Under RSA [91-A:8, III], "the court may invalidate an action of a public body or agency taken at a meeting held in violations of this chapter, if the circumstances justify such an invalidation." Lambert v. Belknap County Convention, 157 N.H. 375, 381 (2008). Because the word "may" is used, the invalidation is "permissive in nature" and the Court uses its discretion in determining whether to invalidate an action. Id.

In Lambert, the only New Hampshire case addressing the question, the New Hampshire Supreme Court reversed the trial court's denial of a request to invalidate the election of a sheriff. Id. Noting that the decision of the convention to elect the sheriff outside of public meeting was error, the Supreme Court held "the Convention's decision to fill the vacancy by secret ballot contravenes not only the explicit legislative mandate against such votes, but also the fundamental purpose of the Right-to-Know Law to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." Id. at 382 (emphasis added, citations and quotations omitted).

In this case, the import of the violation was lower than the improper secret election of a sheriff, but nonetheless implicates the same open government principles of the law. Here, the Court finds that striking the decision of the Planning Board is the appropriate remedy. The drainage concerns raised by Plaintiff are significant: essentially, Plaintiff contends that Intervenor's plans to add loam would require a new drainage plan, as the old plans under estimate the amount of runoff onto Plaintiff's property. Because Plaintiff did not have access to the original drainage plans, it was [7] unable to argue to the Planning Board that the plans needed to be revised to depict the increased runoff due to added loam. Then, based on the new plans, Plaintiff could argue that there was too much runoff from Intervenor's property to Plaintiff's property. Whether this would have convinced the Planning Board is impossible to say, as Plaintiff did not have the original plans, and thus could not make the argument in the first place. That the Planning Board never actually reviewed the plans makes no difference -- it is the obligation of the Planning Board to ensure appropriate drainage systems are in place. See Salem Ordinance §268-4:1 "the Planning Board . . . shall make any appropriate conditions and safeguards in harmony with the general purpose and intent of this chapter and particularly in regard to achieving: . . 4:1.5 In applicable cases, a drainage system and layout which would afford the best solution to any drainage problems."

In short, the Court finds that the plans were improperly withheld and are an important piece of evidence to which Plaintiffs were entitled. Because of their importance in arguing about the propriety of the drainage system, the proper remedy is vacation of the Planning Board's decision.

III. Plaintiff Is Awarded Attorney's Fees

"If any public body or public agency or officer, employee, or other official thereof, violates any provisions of this chapter, such public body or public agency shall be liable for reasonable attorney's fees and costs incurred in a lawsuit under this chapter, provided that the court finds that such lawsuit was necessary in order to enforce compliance with the provisions of this chapter or to address a purposeful violation of this chapter. Fees shall not be awarded unless the court finds that the public body, public [8] agency, or person knew or should have known that the conduct engaged in was in violation of this chapter or if the parties, by agreement, provide that no such fees shall be paid." Here, the Court finds that the Planning Board knew or should have known that their conduct was a violation of the law. The Town argues that it was permissible to draw a distinction between "the file" and "the complete file." The Court disagrees. No reasonable person should have to guess as to the magic words necessary to peruse all the documents on a particular topic, and the Town should have known that drawing such a distinction was improper. Moreover, the bringing of the motion to strike was "necessary in order to enforce compliance with the provisions of this chapter." While Plaintiff may have been aware of the first plan and presumably could have specifically requested it (which the Court has already ruled it was not required to do), there is no evidence that Plaintiff had any knowledge of the January 2013 plan. Because Plaintiff had no knowledge of the January 2013 plan's existence and therefore could not specifically request it, its only remedy was to bring this motion. Because the Court makes these two findings, an award of reasonable attorney's fees is mandatory.

Plaintiff's counsel shall, within 30 days of the issuance of this order, provide an affidavit of fees to the Court and the Town. The Town shall have 10 days to file a responsive pleading. The Court will issue a further order after it reviews these pleading(s).


For the reasons discussed above, the motion to strike and for attorney's fees is GRANTED.

So Ordered.

[9]    Sept. 23, 2014       /s/   

DateMarguerite L. Wageling

Presiding Justice

1 Ms. Fabbrini avers she requested "the complete file." The Town made an offer of proof at the hearing that Ms. Fabbrini only requested "the file" and not "the complete file."

2 Plaintiff's counsel asked "Also, can you tell me if there have been any further submissions (engineers, traffic or anything else) since 1/9/14" to which Mr. Moldoff responded in the negative. Motion to Strike, Ex. C. The Town understood a "submission" to mean a document submitted by the applicant. Apparently, at the time of counsel's inquiry, other documents had been received from parties other than the applicant which the Town did not disclose to counsel.

3 "Whereas the Town admits that there were numerous documents that it did not provide, there is no need for the Court to resolve the factual discrepancy to the extent of the Town's failures." Reply to Objections, n. 1.

4 The Court does not accept the Town's effort to distinguish between "the file" and "the complete file." Both turns of phrase are sufficient to indicate the entirety of documents pertaining to the subject, and a reasonable person would know that by requesting "the file on X" a person means "all documents relating to X."